Delhi High Court
Pankaj Bajaj vs Meenakshi Sharma & Ors. on 9 May, 2014
Author: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 09, 2014
+ RFA(OS) 72/2013 & CMs 10341-42/2013
PANKAJ BAJAJ ......Appellant
Through: Sh.Manav Gupta, Adv.
Versus
MEENAKSHI SHARMA & ORS. ....... Respondents
Through: Mr. S.K. Pathak with Mr. Amit
Sinha and Mr. Rohit Aggarwal,
Advocates for R-1.
Mr. Subrat Deb, Advocate for
DDA/R-3.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. NAJMI WAZIRI
1. This Appeal challenges the order of the learned Single Judge dated 1st
July, 2013 ("impugned order"), whereby the learned Single Judge had
dismissed the appellant's suit, i.e. CS (OS)/1114/2009 ("Suit") seeking
(a) perpetual injunction against dispossession from suit property, i.e.,
A-20, New Friends Colony, New Delhi and (b) declaration that
restoration allotment of the same by the Lieutenant Governor, on 2 nd
May, 2009 was illegal. However, the Suit was itself dismissed on the
ground that the plaintiff (appellant herein) had no title to the suit
property. The impugned order observed inter alia that since the
appellant had set up his case on the basis of a document, which could
Mat. App. (FC) No. 34/2013 Page 1 of 17
not have vested any title in him, the Suit was without any locus or
cause of action.
2. The circumstances in which the Suit came to be filed can be traced to
13th November, 1959 when a notification under section 4 of the Land
Acquisition Act, 1894 ("Act") was issued in respect of lands (including
the suit property), comprised in Khasra 60/3, measuring 1 Bigha 17
Biswas in the Revenue Estate of Village Khizrabad, Delhi. A
Notification under section 6 was issued on 9th January, 1969 and
notices under sections 9 and 10 were served on the land-owners on 20th
June, 1971. This acquisition was to enure to the benefit of the
respondent no. 5 ("Society"); the lands under acquisition were leased
to the Society under agreements dated 13th February, 1963 and 15th
December, 1964 (hereafter collectively referred to as the "Lease
agreements"), for developing the lands as per the sanctioned layout
plan and thereafter sub-leasing it to its members. The owners of Khasra
No. 60/3 challenged the acquisition before this court in W.P. (C).
764/1971 ("Writ Petition"). An interim order on 12th July, 1971
protected the landowners from dispossession. This order was
confirmed on 9th August, 1971.
3. Meanwhile, the land under Khasra No. 60/3 was divided into four
plots, bearing numbers A-13, A-14, A-19 and A-20; the suit property is
the land comprised in plot A-20. It was the appellant's case that the
land comprised in the said four plots remained in the possession of the
original landowners / writ petitioners. The Society allotted the said
Mat. App. (FC) No. 34/2013 Page 2 of 17
four plots to different parties who subsequently became parties to the
Writ Petition. The allottees of plots A-13, A-14 and A-19 settled the
differences with the original landowners and the challenge in respect of
the said plots stood withdrawn in 1987 and 1994. It is the case of the
appellant that the challenge in respect of the said plots was withdrawn
as the allottees, under the settlement, compensated the owners of the
plots - not the respondent no. 3 (DDA).
4. However, the challenge to the acquisition remained, to the limited
extent of the original landowners' interest in the suit property. This
challenge too extinguished in 2005, when a compromise application
was filed and the Writ Petition was withdrawn. The order of 19 th April,
2005 disposing off the Writ Petition recorded inter alia that the
possession of the suit property has already been handed over to the
Society and there was no dispute as to the validity of the acquisition
proceeding. The appellant contends that the settlement came about only
as a result of the Society making payment to the original landowner
using the monies given by the appellant - not from any amounts given
the respondent no. 1; which fact stands admitted by the latter.
5. It is not disputed that in 1982, by a sub-lease, the Society allotted plot
A-20 to Mr. R. D. Sharma, through whom the respondent No. 1 seeks
to claim, the allotment to Mr. R. D. Sharma was cancelled / withdrawn
in 2001 due to non-compliance with the terms of the sub-lease, and
subject to payment of certain charges, the allotment was restored in
2009. Neither the allotment nor the restoration in favour of Mr. R. D.
Mat. App. (FC) No. 34/2013 Page 3 of 17
Sharma is disputed, except that the petitioner questions the powers of
the Lt. Governor / DDA to so do. The appellant has had other
proceedings with the respondent no. 1 in respect of the suit property,
which are not relevant to the present dispute; he claims title to the suit
property on the basis of the settlement with the original landowner and
a sale deed executed by the Society in 2007. He has been enjoying the
property since 2009 on the basis of an interim order passed in the Suit.
6. He contended that when the possession of the suit property was
admittedly not taken till 2005 the acquisition could not be deemed as
complete nor that the Society has received the possession under the
acquisition; that the latter's possession and title to the property is
derived not from the acquisition or the Lease Agreements but from the
settlement of the disputes in 2005, which, in turn, was on the basis of
the monies paid by the appellant; that he derives his title from the 2007
agreement executed by the Society in his favour.
7. The appellant submits that the respondent no. 1, in collusion and
connivance with the respondents no. 3 and 4 were seeking to illegally
and adversely affect his ownership and possession of the suit property
through the restoration of the allotment in 2009; he emphasised that the
restoration was much after the sale in 2007. He thus sought (a)
perpetual injunction against respondents no. 1 and 3 from
dispossessing the appellant; (b) respondent no. 3 being enjoined from
entering upon the suit property; (c) respondent no. 4 being enjoined
from assisting respondent no. 1 in taking possession of suit property;
Mat. App. (FC) No. 34/2013 Page 4 of 17
(d) declaration that the restoration by respondent no. 2 is illegal and
unlawful; (e) declaration that the sub-lease by respondent no. 1 is
illegal, unlawful and inoperative; and (f) such further and other orders,
with costs.
8. An application was filed by the respondent no. 1 in the Suit under
Order VII rule 11 of the First Schedule to the Code of Civil Procedure,
1908 ("Code"), pursuant to which the impugned order came to be
passed. The application sought to contend that the plaint ought to be
rejected as it does not disclose any cause of action.
9. Before the learned Single Judge, the case of the respondent nos. 1 and
3 was that the suit was not maintainable because the appellant had no
locus standi; that since the Society was not competent to execute the
sale deed of 2007, the appellant would have no right, title or interest in
the property. To demonstrate this, they relied on the provisions of the
Lease Agreements of the Society with the President of India,
whereunder the former was given the right to only sub-lease the suit
property, and not to alienate it. It was emphasised that the Society was
prohibited from selling the suit property. They had further relied upon
the order dated 19th April, 2005 disposing off the Writ Petition to
demonstrate that it was an admitted position of the original landowners
that there was no challenge to the validity of the acquisition
proceedings and the possession of the suit property was already handed
over to the Society.
Mat. App. (FC) No. 34/2013 Page 5 of 17
10.The appellant asserted the Society's right to execute the sale deed of
2007; that the possession of the suit property was transferred pursuant
to the settlement with the original landowners and withdrawal of the
writ petition on 19th April, 2005; that pursuant to the settlement, it was
the Society and not the DDA that acquired the interest and possession
of the land; that DDA never acquired title to or interest in the suit
property as possession was never taken over pursuant to the
acquisition; that thus Society was entitled to execute the sale deed of
2007 in favour of the Appellant. To reinforce this contention, the
appellant relied on a response by DDA to a query under the Right to
Information Act, 2005 which stated that till 2005, the possession was
not taken either pursuant to the acquisition or otherwise. It was further
argued that in any case, a triable issue arose as to whether the Society
acquired possession of the suit property pursuant to the acquisition or
(as is sought to be pleaded by the appellant) pursuant to the settlement
culminating in the order of 19th April, 2005. It was lastly argued that
since the appellant was in possession of the suit property, the same
ought to not be disturbed.
11.The learned Single Judge agreed with the contentions of the
respondents, since it was, in the opinion of the learned Single Judge, ex
facie evident from the plaint and documents filed therewith that the
appellant has no locus standi nor is any cause of action found in the
plaint. He accordingly dismissed the Suit. He reasoned:
Mat. App. (FC) No. 34/2013 Page 6 of 17
11.1. The interest in and possession of all the lands under acquisition
were transferred to the Society pursuant to the Lease agreements.
11.2. It is inconceivable how the interest and possession only for the
suit property would transfer to the Society pursuant to the order
of 19th April, 2005.
11.3. In any case, even the compromise application filed for
withdrawing the Writ Petition had acknowledged that the interest
in the suit property passed to the Society under the Lease
agreements. The sale deed sought to be relied upon by the
appellant finds the Society admitting to the same.
11.4. Once it is held that the Society derives its interest to the land
only pursuant to the Lease agreements, any further acts of the
Society qua the land would be governed by and subject to the
terms of the Lease agreements.
11.5. The Lease agreements expressly prohibit any sale of the land by
the Society and only permit a transfer by way of sub-lease,
which admittedly was not done in the instant case.
11.6. Thus, it is ex facie evident from the documents filed with the
plaint that the appellant has neither locus standi nor any cause of
action to file the suit, as the appellant could not have received
any title to the suit property from the Society.
11.7. When it is already admitted by the appellant's predecessor-in-
interest, i.e., the Society - in both the order dated 19th April,
2005 as well as the sale deed the appellant relies on - that the
possession was received under the Lease agreements, no triable
Mat. App. (FC) No. 34/2013 Page 7 of 17
issue arises as to when the possession was actually transferred.
The parties need not be relegated to a trial for the same.
11.8. The case of appellant that he is in possession of the property and
hence is entitled to an order protecting the same from any
disturbance is not founded on the pleadings. A party cannot be
allowed to set up a case not specifically pleaded. The appellant
has set up a case in the Suit based on the sale deed of 2007 and
cannot now seek relief on the basis of possession.
12.Mr. Tiku, learned Senior Advocate for the appellant contended that the
impugned order failed to take into account that the possession of the
suit property passed on to the Society only pursuant to, or in any case,
subsequent to the order of 19th April, 2005. He laid especial reliance on
the reply of the DDA to his RTI application. He further contended that
the property could not have been allotted to respondent no. 1's
predecessor-in-interest when the possession of the property was never
taken over and the acquisition process has per se not been completed.
He further emphasised that the respondent no. 1 could not have
acquired or gained any interest in the suit property from the Society,
since the latter would have had no interest prior to 19 th April, 2005. He
submitted that in any case, the DDA could have acquired no right, title
or interest in the suit property, since the possession of the property was
never taken pursuant to the acquisition.
13.It was further submitted that the Society transferred the suit property to
the appellant only in view of the fact that the appellant settled the
Mat. App. (FC) No. 34/2013 Page 8 of 17
disputes with the predecessor-in-interest / original landowners (which
settlement culminated in the order dated 19 th April, 2005). This, he
reasoned, was in keeping with the outcome of resolution of identical
disputes qua the other plots of land (A-13, A-14 and A-19) by the
allottees with the original landowners.
14.He contended that in an application under Order VII rule 11 ought to
be decided based on the averments in the plaint alone. He contended
that the learned Single Judge has incorrectly proceeded upon an
assumption that the possession of the suit premises were taken pursuant
to the acquisition without giving an opportunity to the appellant to
prove his case. It was contended that the only mandate of order VII
rule 11 was to reject a plaint if, on a reading of the plaint, it is apparent
that no cause of action is disclosed. He further contended that once it is
seen from the plaint that a reasonable case has been made out, the
appellant ought to have been given an opportunity to prove his case in
trial. He contended that the impugned order has caused great prejudice
to the appellant, who is now remediless.
15.Per contra, Senior Counsel Mr. Neeraj Kishan Kaul appearing for the
respondent no. 1 contended that the impugned order suffers from no
infirmity. He contended that it is ex facie evident from the documents
filed with the plaint that the suit property was given to the Society
pursuant to the acquisition and under the Lease Agreements. He
contended that once it is seen that the Society acquires interest in the
suit property under the Lease Agreements, it is a logical sequitur
Mat. App. (FC) No. 34/2013 Page 9 of 17
therefrom that the Society would be bound by the terms thereof -
including the prohibition from selling. In the circumstances, he
submitted, no title could have flown from the Society to the appellant.
He submitted that where the plaint itself discloses no cause of action,
the Suit ought to be dismissed and there was no infirmity in the action
of the learned Single Judge in doing so.
16.The judge considering a matter under Order VII rule 11 of the Code
ought to bear in mind that the issue to be considered is not of whether
the plaintiff has cause of action to file the suit, but as to whether the
plaint has disclosed a cause of action.1 The public policy behind the
provision of Order VII rule 11 could be found in the judgement of the
Supreme Court in T. Arivanandam v T. V. Satyapal & Anr.,2 where it
held that if on a meaningful - not formal - reading of the plaint, it is
manifestly vexatious and meritless, and does not disclose a cause of
action, the power under Order VII rule 11 ought to be exercised.
17.The Supreme Court, in Liverpool & London S. P. & I Association Ltd.
v M. V. Sea Success I & Anr.,3 observed:
"139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not
must be found out from reading the plaint itself. For the said
purpose the averments made in the plaint in their entirety
1 State of Orissa v Klockner and Co. & Ors., (1996) 8 SCC 377.
2 (1977) 4 SCC 467.
3 (2004) 9 SCC 512.
Mat. App. (FC) No. 34/2013 Page 10 of 17
must be held to be correct. The test is as to whether if the
averments made in the plaint are taken to be correct in their
entirety, a decree would be passed.
***
152. So long as the claim discloses some cause of action or
raises some questions fit to be decided by a judge, the mere
fact that the case is weak and not likely to succeed is no
ground for striking it out. The purported failure of the
pleadings to disclose a cause of action is distinct from the
absence of full particulars. (See Mohan Rawale [(1994) 2
SCC 392] .)"
18.The Suit also ought to be considered in the light of the above
pronouncements. The case of the appellant in the Suit is that the
possession of the suit property was never taken over pursuant to the
acquisition. In the plaint, it has been inter alia averred:
18.1. The proceedings in the acquisition remained stayed since 1971
and till 2005.
18.2. The disputes qua the lands comprised in plots A-13, A-14 and
A-19 were settled between the original owners thereof and the
allottees of the plots.
18.3. The original owners of the lands comprised in plots A-13, A-14
and A-19 withdrew the dispute qua the acquisition in view of the
settlement with the allottees.
18.4. The writ petition before this Court was thus only in respect of
the suit property.
18.5. Even the challenge to that limited extent was settled between the
original owners and the Society and the writ petition was
withdrawn in 2005.
18.6. The possession of the suit property was given to the Society
pursuant to the settlement and the withdrawal on the basis of the
consent order.
18.7. The Society then sold the property to the appellant and put him
in possession thereof, which is now sought to be disturbed by the
respondent no. 1 in collusion and connivance with the other
respondents.
19.The plaint contends that in the past the respondents have been involved
in various proceedings inter se in respect of the allotment made to the
predecessor-in-interest of the respondent no. 1 (which was admittedly
cancelled in 2001 and reinstated in 2009); it sought to make out a case
that the respondent no. 1 has neither right, nor title, nor interest in the
suit property at the time of the sale by the Society to the appellant; that
the respondents have colluded to oust the appellant from the suit
property and to gain possession thereof illegally. Alongwith the plaint,
various documents were filed purporting to be in support of the
appellant's case.
20.It has been the case of the appellant before the learned Single Judge as
well as before this Court that the possession was never taken by the
respondent no. 3 pursuant to the acquisition proceedings. The appellant
has sought to set up a case based on the above averments that the
possession was transferred by the original owners to the Society
directly. Even this transfer of possession, it is contended, is pursuant to
the settlement between the original owners and Society.
21.It has further been contended that even the settlement qua the suit
property was effected by the Society using the monies furthered by the
appellant and thus the Society transferred the suit property to the
appellant. Although the respondent no. 1 is said to have made extensive
submissions before the learned Single Judge qua her title to / interest in
the suit property, the same are not relevant for deciding the application
under Order VII rule 11 of the Code. As earlier observed, the only
relevant material for considering an application under Order VII rule
11 is the averments in the plaint - read as a whole - and the documents
filed therewith.
22.This Court is of the view that the averments in the plaint and the
documents filed therewith do disclose a cause of action. The case of the
appellant is that the possession of the suit property was never taken
pursuant to the agreement and that the Society has acquired title,
possession and / or interest therein from the original owners pursuant to
the settlement and not the acquisition. It is thus that the appellant seeks
to set his title up. This cannot be said to be a case of clever or artful
drafting to create an illusory cause of action that ought to be nipped in
the bud under Order VII rule 11. The duty of the Court under Order VII
rule 11 is to consider whether the averments in the plaint taken as a
whole, alongwith the documents filed therewith, if taken to be true,
would warrant a decree in favour of the plaintiff. This Court is of the
view that in the instant case, the averments and the documents would
so do.
23.The learned Single Judge, in the opinion of this Court, erred in placing
undue reliance upon the recitals in the 2007 agreement and on the
content of the compromise application filed in the writ petition. It is
incontrovertible that if the Society had acquired title / interest in the
suit property pursuant to the acquisition and under the Lease
Agreements, it would not be competent to execute the sale deed.
However, that is not the case set up by the appellant in the Suit. The
case of the appellant has been that the possession was handed over to
the Society pursuant to a settlement with the original owners.
Therefore, the appellant ought to be provided an opportunity to prove
his case in trial.
24.However, the learned Single Judge held that the appellant is estopped
from contending so and cannot seek a trial in respect of the said issues.
This, he held, by relying on (a) the acknowledgement (to the effect that
the Society derives title to the suit property under the acquisition and
the Lease Agreements) in the compromise application, (b) the recitals
of the 2007 agreement (which state that the Society derives title to the
suit property under the Lease Agreements), (c) the law laid down by
this Court in Nagin Chand Godha v Union of India,4 and Rajbir
4 2003 (70) DRJ 721 (DB).
Solanki, Dr. v Union of India5 to the effect that the Collector need not
prove actual physical possession being taken over, so long as the
record indicates that possession is taken over.
25.In the opinion of this Court, the aforementioned course of action as
adopted by the learned Single Judge would not be warranted on an
application under Order VII rule 11. As the Supreme Court observed in
Liverpool & London S. P. & I Association Ltd. v M. V. Sea Success I &
Anr.,6 [i]n ascertaining whether the plaint shows a cause of action, the
court is not required to make an elaborate enquiry into doubtful or
complicated questions of law or fact. By the statute the jurisdiction of
the court is restricted to ascertaining whether on the allegations a
cause of action is shown. Although the said documents may contain
certain material that may not be in keeping with the case of the
appellant, it would not warrant dismissal of the plaint under Order VII
rule 11. De hors a patent contradiction, i.e., one ascertainable ex facie
from the record, without involving any lengthy or complicated
argument or a long drawn out process of reasoning, between the
averments and the documents, the Court considering an application
under Order VII rule 11 ought to not lightly ignore an averment in the
plaint.
5 2008 (101) DRJ 577.
6 (2004) 9 SCC 512.
26.The judgements of this Court referred to hereinabove were made in a
different context. In Nagin Chand Godha v Union of India,7 the Court
was faced with a situation where symbolic possession was taken by
execution of a panchnama and thereafter the erstwhile owner claimed
that since he was still in possession thereof, the land ought to be
denotified. In the said circumstances, the Court observed that land
vests in the Union once symbolic possession is taken and shown from
record. Similar was the conclusion of the Court in Rajbir Solanki, Dr. v
Union of India,8 where symbolic possession was taken - admittedly so
- over seven years ago, but denotification was sought on the basis that
the petitioner therein remained in actual possession.
27.In the present case, the only records that the learned Single Judge
appears to have relied upon to arrive at the conclusion that possession
was taken were (a) the aforestated acknowledgement in the
compromise application filed in the writ petition and (b) the recitals in
the 2007 agreement. There is admittedly no panchnama filed with the
plaint to indicate that symbolic possession was taken over. Nor is there
any material to indicate that an overt act has been done by the
Collector to indicate that possession had been taken over, as was the
case in the aforestated two decisions of this Court.
28.In the circumstances, this Court is of the view that the conclusion of
the learned Single Judge that the Society acquired title / interest in the
7 2003 (70) DRJ 721 (DB).
8 2008 (101) DRJ 577.
suit property under the Lease Agreements is unwarranted at the stage
of considering an application under Order VII rule 11. The plaint does
disclose a cause of action which ought to be considered in trial. Thus,
the impugned order is set aside; the parties are directed to present
themselves before the concerned Single Judge as per roster allocation,
on ____________________ for directions towards further proceedings
in the Suit.
29.The appeal is allowed in the above terms, without any order as to costs.
NAJMI WAZIRI
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
MAY 09, 2014
